Blog: Klyuyev’s rights are above all, and why CEC registers regionals from the “DPR”

On 2 July, 2019 Ukrainian information space was disgruntled by the reports that Central Election Commission of Ukraine (CEC) on the second attempt registered Andriy Klyuyev, an ex-vice-president during the government of Victor Yanukovych, and Anatoliy Shariy, a scandalous blogger, as candidates for the people’s deputies. In the evening, several hundred people gathered on Kyiv’s central square – the Independence Square (Maidan Nezalezhnosti), demanding the cancellation of these candidates’ registration. Protesters appealed to CEC to come to its senses in making such hideous decisions, otherwise they promised to “cancel” the CEC on their own.

It should be recalled that on the eve the Ukrainian Supreme Court partially endorsed Klyuyev’s appeal against the CEC decision not to admit his candidacy for registration, on the grounds of non-compliance with the requirements of paragraph 1 of Art. 9 of the Law of Ukraine “On Election of the People’s Deputies of Ukraine”. Thus, according to the Law, a citizen of Ukraine who has reached the age of 21 on Election Day shall have the right to vote, and has been residing in Ukraine for the previous five years has the right to be elected. Under paragraph 2 of the same article, residence in Ukraine under this Law means: residence in the territory of Ukraine within its borders.

In their appeal, Mr. Klyuyev’s lawyers stated that their client had lived in Donetsk in recent years, which de jure remains part of Ukraine, and therefore formally the ex-regional did not violate anything.

Why did it happen?

In their decision, the full text of which has not been yet published, the judges of the Supreme Court used the case law of the European Court of Human Rights (hereinafter the ECHR) in the general context of human rights protection categories of cases is in a worse legal position compared to the state, and therefore needs additional protection. The case law of the ECHR and the Convention for the Protection of Human Rights and Fundamental Freedoms are a source of law in the administration of justice, in accordance with Art. 17 of the Law of Ukraine “On Enforcement of Judgments and Application of the Case Law of the European Court of Human Rights”. At the same time, when conducting administrative proceedings in Ukraine, there is a presumption of guilt of a state body or institution, which, first of all, must prove the legitimacy of one’s own actions.

What is next?

Thus, from the formal and legal point of view, the Supreme Court did not find any violations of the current legislation by candidate Klyuyev and obliged the CEC to reconsider his candidacy, given that all the necessary requirements to run for parliament were met by the candidate. And the CEC, based on court decision that the relevant requirements were met, only complied with these requirements by registering the candidate.

The integrity of the decision on the basis the specific circumstances of the case

As a result, there are again such several formal legal remarks. First: Paragraph 1 of Art. 2 of the Law of Ukraine “On Ensuring of Civil Rights and Freedoms and the Legal Regime in the Temporarily Occupied Territory of Ukraine” establishes a special legal regime in this territory. According to Art. 4 of this Law, a special legal regime of crossing the borders of the temporarily occupied territory, transactions, elections and referendums, the implementation of other human and civil rights and freedoms applies. According to Art. 4 of Law, for the term of the Law, a special legal regime of crossing the borders of the temporarily occupied territory, carrying out acts, elections and referendums, the implementation of other human and civil rights and freedoms applies.

In fact, it is said that a separate legal regime is established for the temporarily occupied territory on a number of issues (including elections), which differs from that in force in the rest of Ukraine. Therefore, the general provisions of the law on persons’ residence or staying in such territory do not apply.

In other words, based on the content of the Supreme Court decision, according to the general rule of the same Law of Ukraine “On Elections of People’s Deputies of Ukraine” it is now necessary to additionally form majority single-mandate constituencies in Ukraine and Crimea and elect deputies there, and is – “single-member constituencies are formed within the Autonomous Republic of Crimea, regions, cities of Kyiv and Sevastopol with approximately equal number of voters in each constituency” ( Paragraph 2 of Art. 18 of the Law). However, as you know, this will not happen.

Well, then, where is the consistency in the actions and decisions of the Supreme Court? – Taking into consideration the previous events related to Ukrainian courts, the question is, unfortunately, rhetorical. Obviously, the phrase: “One law is for the rich, and another for the poor” is best suited for what is going on right now with a system of courts in Ukraine which is not fully developed, the final verdict of which will be set by the people.

Dmitry Perov , founder of the NGO “Green Minute”

Translated by Anastasiia Lytovka

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